Dispute Resolution (Ireland)
Dispute resolution has changed dramatically in Ireland in the last year, accelerated by the COVID-19 pandemic. The increased use and integration of technology in the courts has provided, and will continue to provide, greater access and efficiency for businesses in Ireland and internationally.
A more modern court system
In 2020, the Chief Justice, The Hon. Mr. Justice Frank Clarke stated that the thinking, planning and actions of the Courts Service had developed five years over five months as a result of the pandemic. While this accelerated change was born out of necessity, it is no exaggeration to say that it has truly modernised the Irish court system, improving the efficiency and cost-effectiveness of litigation in Ireland, and has paved the way for implementation of further reforms.
With the onset of the pandemic, the Courts Service, working with key stakeholders in the legal community, moved swiftly to introduce remote hearings to ensure the continued administration of justice even at the height of the COVID-19 restrictions. This allowed the superior appeal courts, the Court of Appeal and the Supreme Court, to hear all appeals remotely and to continue their business without any backlog. At High Court level, while there was an inevitable reduction in the number of cases heard due to social distancing requirements, much of the High Court work, including that of the Commercial Court, continued remotely, or part-remotely (on a hybrid-based model), after the President of the High Court, The Hon. Ms. Justice Mary Irvine, determined that all High Court proceedings and applications that could fairly be decided without oral evidence being heard in this way.
The courts have also moved to direct and facilitate full remote witness hearings. In January 2021, the Commercial Court directed the first ever fully remote witness hearing notwithstanding an objection by the defendant to proceeding in this way. The Court made this direction under legislation introduced in August 2020 that allows judges to direct that hearings proceed remotely and to direct the technology that may be used. The legislation also allows the Chief Justice and the Presidents of the various court divisions to direct that certain categories or types of proceedings be heard remotely.
The response of the Irish courts to the challenges posed by the COVID-19 pandemic, and the strong leadership shown by the Chief Justice and the President of the High Court, in particular, show that the Irish courts and Irish judges are determined to allow the business of the courts to continue, even in the most challenging of circumstances. We have seen a very significant improvement in the technological infrastructure in our courts and court offices, and an encouraging uptake and willingness by the judiciary, particularly in the superior courts, to embrace technology and adapt to change. Beyond the pandemic, we expect that remote hearings will continue to be a feature of our court system, certainly in respect of routine court applications not requiring oral evidence. We also expect the courts to champion the continued development of other alternatives to traditional paper-based practices, including predictive coding and technology-assisted review in discovery.
More efficiencies on the horizon
In 2020, a high-level review group, chaired by the former head of the Commercial Court and President of the High Court, The Hon. Mr. Justice Peter Kelly, established to review the administration of civil justice in Ireland, published a report with over 90 recommendations for reform. The recommendations are aimed at streamlining process, reducing legal costs and shortening the time period involved in civil litigation. The Government has given its commitment to implementing the reforms and to publishing an implementation plan this spring.
Amongst the recommendations is the introduction of an entirely new and more efficient and cost-effective discovery regime, the introduction of pre-action protocols in general High Court litigation, more extensive use of case management, limitations on adjournments, increased efficiency around the use of expert evidence, the creation of a High Court (Commercial) list to deal with IP and technology matters and guidelines in relation to litigation costs.
Activity, trends, developments in dispute resolution
We saw many disputes resolved commercially in 2020 in the initial stages of the COVID-19 pandemic, but we expect to see a significant increase in disputes, particularly in the latter half of 2021 as Government COVID-19 related supports are phased out, the forbearance shown by many creditors comes to an end and the real effect of Brexit on trade and supply chains is felt. We have also seen a steady uptake in mediation, again spurred on by the pandemic, but a trend we nevertheless expect to continue.
Areas where we expect a particular rise in activity include:
–Corporate restructuring, with many businesses looking to restructure, particularly in the retail and hospitality sectors, and we may see a spike in examinerships (where court protection is obtained to assist the survival of a company);
– Contractual disputes, including disputes regarding force majeure events that were notified during the course of 2020 and disputes around the frustration of contracts;
– Commercial tenancy disputes, in particular rent arrears disputes;
– Aviation disputes, including disputes with aircraft leasing companies and restructuring proceedings as some airlines struggle to preserve their business operations;
– Data protection disputes and follow-on civil claims and the continued use by data subjects of Data Subject Access Requests (provided for by the GDPR);
– Regulatory investigations: The insurance and investment funds sectors, in particular, are high on the agenda of the financial services supervisory body, the Central Bank of Ireland, with a particular focus on business interruption insurance and coverage issues, and dual or differential pricing in the motor and home insurance markets. We may also see legislation on senior executive accountability regime and an enhanced fitness and probity regime as the Central Bank moves to a mode of supervision and enforcement that involves more individual accountability and liability; and
– Corporate crime: The Irish Government’s focus on corporate crime continues, and in 2020 it approved the introduction of new anti-corruption legislation that will give greater investigation powers to the Gardaí (Irish police) and the Office of the Director of Corporate Enforcement to tackle fraud and corruption.
Opportunities presented by Brexit
The withdrawal of the United Kingdom from the EU presents opportunities for the Irish legal system, including its courts and arbitral tribunals, to become a leading centre for dispute resolution in international litigation and arbitration, and to capitalise on the technological advancements and improvements made in response to the pandemic.
As the only remaining common law jurisdiction in the EU, international businesses may now look to Ireland as the venue of choice for determining cross-border disputes, and Ireland is well positioned to receive their business. We are English-speaking and pro-business, we have an efficient, highly regarded and well-established Commercial Court, and our continued membership of the EU ensures that judgments of the Irish courts will be easily recognised and enforced throughout the Union.